Exhibit 10.1
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (this "Agreement") is made
and entered into as of the [_____] day of [__________] 20[___]
(the "Grant Date"), by and between Xxxxxx Enterprises, Inc., a
Nebraska corporation (the "Company"), and [_______________], an
eligible participant and recipient ("Participant") under the
Xxxxxx Enterprises, Inc. Equity Plan (as defined and described
below). As set forth herein, this Agreement is subject to the
terms and conditions of the Xxxxxx Enterprises, Inc. Equity Plan,
as may be amended from time to time.
RECITALS
WHEREAS, the Company has in effect the Xxxxxx
Enterprises, Inc. Equity Plan, which was initially
adopted by the Company on May 12, 1987 and ratified and
approved by the stockholders of the Company on June 9,
1987 as the Xxxxxx Enterprises, Inc. Stock Option Plan
(as amended and restated on May 3, 1994, February 8,
2000, May 9, 2000, February 25, 2003 and May 11, 2004),
and which was amended, restated and renamed the Xxxxxx
Enterprises, Inc. Equity Plan by the Company on March
15, 2007 and ratified and approved by the stockholders
of the Company on May 8, 2007 (the "Plan"), and which
may be amended and restated from time to time;
WHEREAS, the Plan permits shares of the Company's
common stock, $0.01 par value (the "Common Stock"), to
be granted as restricted stock to (i) any key employee
(including an employee who is a member of the Company's
Board of Directors (the "Board") and/or an officer of
the Company and its subsidiaries) and (ii) any non-
employee member of the Board;
WHEREAS, the Company believes it to be in the best
interests of the Company and its stockholders for
certain key employees and non-employee members of the
Board to obtain or increase their stock ownership
interest in the Company in order to establish a greater
incentive in providing services to the Company and to
further align their interests with those of the
stockholders of the Company; and
WHEREAS, Participant is a key employee of the Company
and has been selected by the Compensation Committee of
the Board (the "Committee") to receive an award of
restricted stock under the Plan.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and of the
covenants and agreements herein set forth, the parties hereby
mutually covenant and agree as follows:
1. Grant of Restricted Stock. Subject to the terms and
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conditions of the Plan (attached hereto as Exhibit A and made a
part hereof) and this Agreement, the Company hereby grants to
Participant an aggregate number of [_______ thousand] ([___,000])
restricted shares of Common Stock (such restricted shares of
Common Stock are hereinafter referred to as the "Restricted
Stock" or the "Award"). The Restricted Stock granted under this
Agreement is exempt from Section 409A of the Internal Revenue
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Code of 1986, as amended. The Restricted Stock was granted to
Participant on the Grant Date of [__________, 20___].
2. Acceptance of Award. The granting of this Restricted Stock
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Award does not impose any obligation on Participant to accept
such Award. By accepting the Award, however, Participant agrees
to be subject to and bound in accordance with the terms and
conditions of this Agreement and the Plan. Participant's
execution of this Agreement shall evidence and constitute
Participant's acceptance of the Award contemplated herein.
3. Vesting. The Restricted Stock shall become nonrestricted
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and fully vested, and restrictions on such Restricted Stock shall
lapse, on [__________, 20___], the fifth (5th) anniversary of the
Grant Date (the "Vesting Date"). Until the occurrence of the
Vesting Date, all of the Restricted Stock shall be non-vested,
may be canceled and forfeited upon Participant's termination of
employment and may not be subject to further vesting under this
Agreement, pursuant to the Plan and Section 7 of this Agreement.
4. Value of Restricted Stock. Participant acknowledges that
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the value of each share of Restricted Stock granted under this
Agreement is not predetermined, fixed, permanent or otherwise
set, specified or guaranteed whatsoever. On the Vesting Date and
each subsequent date thereafter, the value of such shares that
fully vest and become unrestricted shall equal the Fair Market
Value of the Common Stock of the Company on the respective date.
Participant acknowledges that the Fair Market Value of such
shares may fluctuate and vary according to market conditions and
other factors. "Fair Market Value" means the closing trading
price of one share of Common Stock on the NASDAQ Global Select
MarketSM securities exchange, as published by the Wall Street
Journal for the date in question.
5. Taxes. Participant will be solely responsible for any
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federal, state, local or other taxes imposed in connection with
the granting and acceptance of the Restricted Stock pursuant to
this Agreement and the Plan and with the delivery of Restricted
Stock that has vested and become unrestricted pursuant thereto.
Participant acknowledges that upon Participant's recognition of
the income with respect to the Restricted Stock granted
hereunder, the Company may withhold taxes pursuant to the terms
of the Plan.
6. Issuance Upon Vesting; Withholdings.
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(a) On the designated Vesting Date, Participant shall have
all rights as a stockholder and be entitled to
certificates for Restricted Stock that vested and
became unrestricted upon (i) Participant's satisfaction
of all applicable tax withholding amounts and
requirements and (ii) Participant's execution of the
Investor Representations and Warranties Regarding
Restricted Stock Awards form (attached hereto as
Exhibit B). The shares are payable to Participant upon
vesting.
(b) The Company is not obligated to deliver any Restricted
Stock that has vested and become unrestricted unless
Participant has satisfied all applicable federal,
state, local and other tax withholding requirements.
Participant may pay all required withholding amounts
pursuant to the provisions of the Plan.
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7. Termination of Employment; Death. Subject to the Plan and
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this Agreement and unless the Plan and Agreement provide
otherwise, during Participant's lifetime, only Participant is
entitled to receive the Restricted Stock granted hereunder.
Termination of Participant's employment with the Company will
affect the forfeiture of any Restricted Stock granted herein and
shall be governed by the provisions of the Plan. In the event
Participant dies while holding Restricted Stock (not otherwise
forfeited), all service period and other restrictions applicable
to such Restricted Stock shall lapse, and such Restricted Stock
shall become fully vested and nonforfeitable in accordance with
the Plan.
8. Nonassignability of Award. The Award of Restricted Stock
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shall not be assigned, mortgaged, pledged, attached, sold,
transferred or otherwise encumbered by Participant other than by
will or the applicable laws of descent and distribution, except
as may be permitted by the Board or Committee from time to time
in accordance with the Plan. If Participant attempts to
alienate, assign, pledge, hypothecate or otherwise dispose of
Participant's Restricted Stock Award, such Award may be
terminated and become null and void pursuant to the Plan.
9. No Stockholder and Dividend Rights. Participant shall not
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be deemed for any purpose to have any dividend, voting,
liquidation or other rights with respect to the Restricted Stock
granted hereunder, except to the extent that such Restricted
Stock vests and becomes unrestricted and Participant then becomes
entitled to an issued stock certificate for such vested and
unrestricted shares, pursuant to this Agreement and the Plan.
10. Restrictions on Transfers of Common Stock.
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(a) Participant agrees individually and for Participant's
heirs, legatees and legal representatives, with respect
to all unrestricted shares of Common Stock acquired
pursuant to the terms and conditions of this Agreement
(or any shares of Common Stock issued pursuant to a
stock dividend or stock split thereon or any securities
issued in lieu thereof or in substitution or exchange
therefor), that Participant and Participant's heirs,
legatees and legal representatives shall not sell or
otherwise dispose of such shares except pursuant to an
effective registration statement under the Securities
Act of 1933 (the "1933 Act") or except in a transaction
which, in the opinion of counsel for the Company, is
exempt from the registration and prospectus delivery
requirements under the Act. As further conditions to
Participant's receipt of the unrestricted Common Stock
acquired pursuant to this Agreement and the Plan,
Participant agrees individually and for Participant's
heirs, legatees and legal representatives, prior to
such acquisition, to execute and deliver to the Company
those investment representations and warranties set
forth in Exhibit B hereto and to take those other
actions, as counsel for the Company determines may be
necessary or appropriate for compliance with the 1933
Act and any applicable securities laws.
(b) Unless otherwise determined by the Board, Participant
agrees that any certificate representing restricted
shares of Common Stock acquired under this Agreement
and in accordance with the Plan shall bear a legend
substantially similar to the following (and any other
legend as may be required by state securities laws):
The shares of Common Stock of Xxxxxx
Enterprises, Inc. represented by this
certificate are restricted securities as that
term is defined under Rule 144 promulgated
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under the Securities Act of 1933, as amended
(the "Act"). These shares may not be sold,
assigned, transferred or disposed of unless
(i) such shares are registered under the Act
or (ii) such sale, assignment, transfer or
disposition of such shares is exempt from the
registration and prospectus delivery
requirements of the Act and any applicable
state securities laws. Any sale, assignment,
exchange, gift, transfer or other disposition
of the Common Stock represented by this
certificate is subject to the terms and
provisions of the Xxxxxx Enterprises, Inc.
Equity Plan and the Restricted Stock Award
Agreement, dated [__________, 20___], by and
between Xxxxxx Enterprises, Inc. and
[_______________].
(c) Unless the Board determines otherwise, any certificate
representing unrestricted shares of Common Stock
acquired under this Agreement and in accordance with
the Plan shall bear a legend substantially similar to
the aforementioned legend in Section 9(b) of this
Agreement (and any other legend as may be required by
state securities laws); however, the final sentence of
such legend may be removed by the Company upon the full
vesting and lapse of restrictions of the Restricted
Stock granted hereunder.
11. Adjustments. In the event there is change in the number or
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rights and privileges of the outstanding shares of Common Stock
(or of any stock or other securities into which such Common Stock
may be changed or for which it may be exchanged), then the Board
or Committee may adjust the number or rights and privileges of
the shares subject to the Restricted Stock Award if the Board or
Committee in its sole discretion determines that such change
equitably requires such an adjustment. As part of the
adjustment, the Board or Committee shall determine, in its sole
discretion, the manner of any such adjustment. Any adjustment or
substitution provided for in this Section 11 or the Plan shall
not result in the issuance of any fractional shares.
12. Board and Committee Authority. As consistent with the Plan
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and this Agreement, the Board and Committee have the power and
discretion to interpret this Agreement; adopt rules for the
administration, interpretation and application of this Agreement;
and interpret or revoke any such rules (including, but not
limited to, determinations of employment termination and whether
any Restricted Stock has vested or shall be deemed vested). All
actions taken and all interpretations and determinations made by
the Board and Committee in good faith will be final and binding
upon Participant, the Company and all other interested parties.
No member of the Board or Committee will be personally liable for
any action, determination or interpretation made in good faith
with respect to this Agreement.
13. Rights and Powers of Company Not Affected. The existence of
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the Restricted Stock granted under this Agreement shall not
affect in any way the rights or powers of the Company or its
stockholders to authorize and effect any or all adjustments,
recapitalizations, reorganizations or other transformations or
alterations to the Company's capital structure, business or
operations; any merger or acquisition of the Company; any
issuance of bonds or debentures; any preferred or prior
preference stock ahead of or affecting the Common Stock or the
rights thereof; a dissolution or liquidation of the Company; any
sale or transfer of all or any part of the Company's assets or
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business; or any other lawful corporate act or proceeding of a
similar character or otherwise.
14. No Right to Employment. The provisions of this Agreement
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(including the granting and vesting of the Restricted Stock) do
not confer upon Participant any right to continued employment
with the Company or its subsidiaries, nor do any of such
provisions interfere in any way with the right of the Company or
subsidiary (as the case may be) to terminate Participant's
employment or to make any modification to Participant's
compensation at any time.
15. Changes in Circumstances Affecting Common Stock.
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Participant expressly understands and agrees that Participant
assumes all risks incident to (i) any change hereafter in any
applicable laws or regulations or (ii) any change in the value of
the Restricted Stock issued under this Agreement or the
outstanding Common Stock after the date hereof.
16. Notice. All notices, claims, certificates, requests,
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demands and other communications provided hereunder shall be in
writing and shall be deemed duly given if personally delivered or
if sent by a recognized overnight courier; registered or
certified mail (return receipt requested and postage prepaid); or
telecopy, facsimile or other means of electronic correspondence
(confirmation of receipt requested). Participant shall send
notice to the Corporate Secretary of the Company at the Company's
principal executive offices in Omaha, Nebraska, and the Company
shall send notice to Participant at an address designated and
provided by Participant to the Corporate Secretary. Notice shall
be deemed to be received as follows: (i) for personal delivery,
on the date of such delivery; (ii) for recognized courier, on the
next business day after sent; (iii) for registered or certified
mail, on the third business day following that on which the
notice was postmarked; and (iv) for telecopy, facsimile or
electronic correspondence, when receipt of confirmation is given
(or if no receipt is provided, on the business day after the date
sent).
17. Assignment of Agreement. Participant is prohibited from
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assigning, transferring or otherwise conveying this Agreement,
including any or all of Participant's duties and obligations
hereunder, until the terms, conditions and restrictions contained
herein have been satisfied and released or unless the Board or
Committee consents and permits otherwise.
18. Amendment or Modification; Counterparts. This Agreement may
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be amended, modified or supplemented only by a written instrument
executed by all parties to this Agreement. This Agreement may be
executed in one or more counterparts. Each counterpart shall be
deemed original, but all such counterparts together shall
constitute but one agreement.
19. Severability. If any provision of this Agreement is
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adjudicated or determined by a court of competent jurisdiction to
be invalid, prohibited or unenforceable for any lawful reason,
such provision (as to such jurisdiction) shall be ineffective and
rendered null and void. In such event, the remaining provisions
of this Agreement shall remain effective, valid and enforceable.
20. Governing Law. This Agreement shall be governed by the laws
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of the State of Nebraska without regard to the principles of
conflicts of laws and with respect to all matters, including (but
not limited to) matters of validity, construction, effect,
performance and remedies. Participant expressly submits to the
exclusive personal jurisdiction and exclusive venue of the
federal and state courts of competent jurisdiction in the State
of Nebraska.
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21. Waiver of Jury Trial. Each party to this Agreement hereby
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irrevocably and unconditionally waives, to the fullest extent
permitted by law, the right to trial by jury in any suit, action
or proceeding arising hereunder.
22. Terms of the Plan Govern. All parties acknowledge that the
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Restricted Stock is granted under and pursuant to the Plan, which
shall govern all rights, interests, obligations and undertakings
of the Company and Participant. The Plan shall govern and be
controlling in the event (i) any of the terms of the Plan and
this Agreement are inconsistent or conflict or (ii) this
Agreement is silent and does not include provisions with respect
to a particular matter or circumstance. All capitalized terms
not otherwise defined herein shall have the meanings assigned to
such terms in the Plan.
IN WITNESS WHEREOF, the parties hereto agree to the terms and
conditions herein and have executed this Restricted Stock Award
Agreement, effective as of the Grant Date first set forth above.
PARTICIPANT: XXXXXX ENTERPRISES, INC.:
By:
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Signature Signature
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Name (Print) Name (Print)
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Title Title
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Date Date
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EXHIBIT A
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XXXXXX ENTERPRISES, INC.
EQUITY PLAN
EXHIBIT B
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INVESTOR REPRESENTATIONS AND WARRANTIES
REGARDING RESTRICTED STOCK AWARDS
The undersigned hereby acknowledges, represents, warrants and
agrees with Xxxxxx Enterprises, Inc. (the "Company") with respect
to the following:
1. The undersigned is acquiring [_______ thousand] ([___,000])
restricted shares (the "Shares") of the common stock, $0.01
par value, of the Company. Such Shares (whether unvested
and restricted or whether vested and unrestricted), are for
his own account, for investment purposes only and are not
acquired with a view to or for the resale, distribution or
fractionalization thereof, in whole or in part; and no other
person has a direct or indirect beneficial interest in the
Shares.
2. The undersigned acknowledges his understanding that the
offering and acceptance of the Shares is intended to be
exempt from registration under the Securities Act of 1933,
as amended (the "Act"). In furtherance thereof, the
undersigned represents and warrants to and agrees with the
Company as follows:
(a) The undersigned acknowledges his understanding of the
risks inherent in an investment of this nature and that
he has the financial ability to bear the economic risk
of his acquired investment in the Company (including a
possible loss of such investment), has adequate means
for providing for his current needs and personal
contingencies and has no need for liquidity with
respect to his acquired investment in the Company.
(b) The undersigned has knowledge and experience in
financial and business matters as to be capable of
evaluating the merits and risks of an acquired
investment in the Shares and has obtained, in his
judgment, sufficient information from the Company to
evaluate the merits and risks of such an investment in
the Shares.
3. The undersigned:
(a) Has had reasonable opportunity to obtain information
concerning the Shares, the Company and all other
information relating to an acquired investment in the
Shares; and
(b) Has been given the opportunity to ask questions of, and
receive answers from, the officers of the Company in
order for him to evaluate the merits and risks of an
acquired investment in the Shares.
4. In making his decision to accept the Shares, the undersigned
has relied solely upon the Restricted Stock Award Agreement
between the undersigned and the Company dated [__________,
20___], the Xxxxxx Enterprises, Inc. Equity Plan (as defined
in such Restricted Stock Award Agreement), any written
information supplied by the Company or its authorized
representatives and any independent investigations made by
him. The undersigned is not relying on the Company or any
of its officers or members of the Board of Directors with
respect to tax advice or other economic considerations
involved in this investment relating to the undersigned's
own tax and economic situation.
5. The undersigned represents, warrants and agrees that he will
not sell or otherwise transfer the Shares (whether unvested
and restricted or whether vested and unrestricted) without
registration under the Act or an exemption therefrom, and he
fully understands and agrees that he must bear the economic
risk of his acquired investment for an indefinite period of
time. The undersigned also understands that sales or
transfers of the Shares are further restricted by the
provisions of the Xxxxxx Enterprises, Inc. Equity Plan and
applicable federal and state securities laws.
IN WITNESS WHEREOF, the undersigned has executed this Investor
Representations and Warranties Regarding Restricted Stock Awards
form as of the date set forth below.
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Signature
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Name (Print)
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Title
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Date
